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Wendy Reed, Enrolled Agent

Category: Tax

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Experience: 15+ years tax preparation and tax advice.

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i received a California state HOH (head of house hold) audit

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i received a California state HOH (head of house hold) audit two months ago for the year of 2009. i went online and also filled out their form notifying them that the dependent is my father and i paid for over 50% of his living expenses (he lives in my condo). but i did get married on Dec 22nd of 2009, however, we did not live together until January 5 of 2010. i mistakenly filled out question 11b the date of our marriage, 12-22-09, the question reads:

"if you were married or an RDP during all or part of 2009 and you lived with your spouse/RDP at any time during 2009, list the beginning and ending dates of each period when you lived together"

now, they disqualified me for claiming my father as my dependent (i qualified for the past 9 years) because i got married at the end of last year and apparently lived with her. i have proof that she stayed in her apartment until 12-28-09 and then we flew to NYC on 12-29 for new years. so, we did not live together. is that a sufficient proof for them or they might say since you got married even on the last day, we disqualify you.

Thank you for giving me the opportunity to assist you. I will give the best answer that I can with the information provided.

Hello there,

California follows the federal rules for Head of Household filing status. The problem with your situation is that you were legally married as of the last day of 2009. The advice that your tax person gave you "should not have told the IRS that i got married 12-22-09" is bad advice as by hiding this fact you are committing fraud.

Whether or not you lived with your spouse during 2009 is irrelevant, because the qualifying person in your situation is an adult, not a child.

The rules that you are referring to about not living with your spouse for the last 6 months of the year need to be looked at more closely. When you are legally married, and do not live together at all with your spouse for the last half of the year, you may only be "considered unmarried" for head of household purposes when and if the home was the main home of your child, foster child, or stepchild. page 7-8: http://www.irs.gov/pub/irs-pdf/p501.pdf

An adult dependent does not give you the "considered unmarried" when in fact you are married.

This is true also for California state tax purposes. Here is the brochure that shows this, on page 8 under "A taxpayer who is married or an RDP claimed a parent or relative"

Now-as you do not qualify for head of household for 2009, you should amend your returns and file married separately or married jointly, whichever benefits you the most. Your wife would have to consent to file jointly.

As for the dependency issue, there is no reason why you cannot claim your father as a dependent, as he meets all the tests needed for dependency claim.

Excellent information, very quick reply. The experts really take the time to address your questions, it is well worth the fee, for the peace of mind they can provide you with. OrvilleHesperia, California

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